The 1st Amendment: Part 1: Religious Liberty

The First Amendment

In the new tradition of almost timely posts, I've decided to renew my ongoing 27+ part series on US constitutional amendments.  Today we have part 2 (you can read part 1 here).  Luckily, unlike my first piece, I had somewhere to start with this one and enough to say that I will most likely break this into three posts.

The Text:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

As you might have surmised from the title, I'm going to stick to religion today, speech, press, and assembly will just have to wait until another time.  This is not an expression of importance; in many ways I believe the freedom of speech to be the most fundamental of all rights; this is solely because of the number of current issues regarding religious liberty and how it can contrast with civil rights.

Public Prayers

First, a local case currently pending a decision from the Supreme Court, the Town of Greece v. Galloway (a more comprehensive breakdown can be found here).  In summary, the Town of Greece opens their town meetings with a prayer and generally invites a member of the local clergy to lead it.  Those leading the prayers were primarily Christian and so non-Christian residents are suing to either have the prayers ended or expanded by giving guidelines to those leading the prayers as to what would be appropriate.  Let me start with this; I'm not a particularly religious person and public prayers outside of a church service always leave me feeling a little out of place. That said, I also realize that these prayers are an inescapable fact of life.  Even as a secular society we have no shortage of public institutions invoking deities through prayer to open meetings or any of a dozen other types of gatherings.  As (and I can't believe I'm citing him) Justice Alito raised during the arguments, no prayer can possibly appease every religion, especially when atheists are included in the discussion.  Typically this is why prayers of this sort are expected to be as inoffensive as possible, and come from a variety of sources; something that the Town of Greece had been trying to do, but failed to follow through on. The Supreme Court decision is due back this summer, but it's unlikely to be anything earth shattering.  A sweeping ruling could ban all such public prayers, which would be a wildly unpopular decision, so I expect it will amount to little more than some type of enforcement of more diverse prayers.

Aside from being of local relevance, this case lets us talk about what will be a recurring theme. Where does my freedom to exercise my religion end and someone else's begin?  This isn't an easy question to answer and it becomes the central argument in most of these cases.  Does the city have a right to open their sessions with a prayer if they choose to?  Do the clergy leading the prayers have the right to do so without government oversight?  Do the citizens have a right to a government that does not favor any one religion?  The city probably does have that right; without some compelling reason higher governments shouldn't be dictating to local governments how to run their own meetings.  The clergy definitely have the right to non-interference; just the concept of the government dictating which types of prayers are publicly acceptable is clearly unconstitutional, even if it would resolve the immediate problem.  Finally, the citizens definitely have the right to a government that respects all religions.  So how do we balance the rights of the city, the clergy, the citizens?  Perhaps the best answer is really to give time to each religion represented in the city.  There will always be some who feel put off by however the meetings are started regardless of the prayer or lack thereof, so sometimes the best thing to do is cycle through making everyone uncomfortable occasionally.

Birth Control

Second, the first big national topic, Birth Control and Religion.  I'll leave the analysis of the specific cases to the more qualified and speak to the general principles involved (though, again, SCOTUSblog is a fantastic resource for the curious about both Conestoga Wood v. Sebelius and Sebelius v Hobby Lobby).  I find these cases fascinating in the abstract.  Do private companies have a right to operate based on religious principles?  And, if so, to what extent are they allowed to enforce those principles on those who work for them?

For the most part we, as a society, don't care when businesses operate on religious principles.  If they want to be closed on Saturdays or Sundays, or choose not to sell alcohol, or operate a Kosher or Halal kitchen, or any other manner of operation that is based on religious tenets, we rarely care either as customers or as employees.  Unfortunately, under the Affordable Care Act, we have to deal with address the implications of faith based private businesses.  If we accept the premise that a business can be faith based regardless of their actual business, we must decide how far they are allowed to enforce that faith and we need to deal with the conflict between non-discrimination acts and those religious liberties.  Hobby Lobby can't refuse employment based solely on the religion of the applicants which means they must have some employees who do not share their religious beliefs.  Even if we accept that the owners are running their business based on their faith, do they have the right to limit the health care options of the employees who do not share those beliefs?  Must everyone who works for them adhere to their religious standards?  In any other situation this would be an almost obvious no, but because the ACA is so controversial, this is seen as another avenue to attack an unpopular (at least in some groups) law. Imagine if, instead, the employees were being required to maintain a religious diet, or join in management led prayers daily.  A common argument is that this is a slippery slope to religious exemptions for other types of medical coverage, but I see this as a slippery slope to employment discrimination.  If businesses are allowed to be adherents to a religion then they would be able to argue for all rights therein, not just this specific scenario.

Photographers and Cakes

Third, we're going west to the gay weddings, photographers, and cakes.  Arizona made big news twice, first for passing a deeply unsettling bill and second for vetoing it.  Arizona made the big news, but they weren't the only state with a bill of that nature on their agenda and they won't be the last.  This has also been couched as a "religious liberty" question.  Since the business owners are good faithful Christians who can't, in good conscience, provide services to gay couples, they must refuse service based on religious grounds and they argue that they should have that right based on the 1st amendment.  Unlike the first two questions, I don't believe that this is a question of religious liberty.  The first is a clear question of Establishment (City vs Citizens), while the second is definitely a case of Free Exercise (Company vs Employees).  This last situation is, at least in my opinion, a question of business rights vs consumer rights regardless of religion.

Some business owners would like the right to decline service to certain customers.  These are primarily service businesses and they are largely basing their current claims in religious beliefs.  Unfortunately I think this misses the fundamental question: Do businesses have a right to deny services to customers?  In most cases they don't unless there is a key business interest in that denial.  In that sense, it may circle back as a question implied by the Birth Control exception cases.  Does maintaining religious beliefs constitute a key business interest?  That's a tough argument to make since religions generally believe in individuals living properly rather than businesses.  A person might find salvation, but their bakery won't be joining them in heaven.  That said, I'm not entirely convinced that businesses should be required to serve individuals that they disapprove of.  Typically a business functions best by providing their services to everyone regardless of their particulars, but if they choose not to, that seems like a decision best defended under Freedom to Assemble rather than Freedom of Religion.

The Point?

So what is the point of all of this?  Much like the point I reached in The 2nd Amendment post; the point is that we're thinking about rights in ways that our bill of rights was never designed for.  Our founders wanted to ensure that we would not be citizens of a country with a new State Religion.  We were to be free of both the Church of England and the Pope.  We were to be free to exercise our own religious beliefs, whatever they may be.  Well we have that.  We live in a society where the government does not tell us which religion we must be members of and does not arrest us for exercising our own beliefs.  Everything beyond that, be it liberal or conservative, is trying to find a justification in a document where none was intended to meet our current needs.

This is not a Novel, I am not a Writer, and Congress is apparently not a Government

Welcome to day one.

So, for a variety of personal reasons, I have decided to participate in National Novel Writing Month this year... sort of.  First I should take a moment to explain NaNoWriMo to those who don't know (and can't be bothered to look it up).  It is, in short, an excuse to use crappy November weather as motivation to stay inside and write like mad to the tune of 50,000 words in a month, or a ballpark of 1,700 words per day and at the end of the month have something resembling a short novel (or a long novella, it appears to depend on who you ask with novelists scoffing at 50,000 word novels and everyone else agreeing that 40,000 is the barrier, but I digress).

I say "sort of" regarding my participation because while I am challenging myself to sit and write, in volume, every day for the month of November, this is not going to be a novel or anything resembling one.  I am not a fiction writer, or more accurately, I am not a dialogue writer.  I can write a nice, compelling short story, but 200+ pages without a single conversation would be painful to read, let alone write.  So, those expectations being set aside, my goal this month is to write 2000 words per day, every day on the kinds of topics that I've written about before.  Politics, current events, possibly some things about science and technology, and, if all else fails, random thoughts about life.

When I agreed to do this, it didn't seem like too big of a deal, I like to write, and I have wanted to get back to writing on here anyway so it seemed like a great idea.  After all, how hard can 2000 words be to write?  Well, for perspective, my last post was just over 1000 words and took me two days of intermittent writing to finish (a fact that disheartened me more than a little when I realized how short it was).

The other part of NaNoWriMo that I'm going to buy into is creating entirely new content.  I have at least a few posts that are half finished from the last few months that never quite got finished.  I don't plan on using any of those this month to cheat on my word count.  If any of them do get fleshed out, then I will only be counting the new content toward my total (so if you see any 3000 word posts, that's probably why).

So, now that the housekeeping is out of the way, let's move on to something lighter like... the government shutdown.  Okay, so I know it's over already, and I should have written this a month ago, but November is young and this will probably come up again soon enough.

I guess that the easiest way to break down the government shutdown is by the fundamentals; who, what, where, when, and why.

The why is actually the easiest part to understand for once so we'll start there.  The short answer is, of course, Obamacare, with some side arguments on the Debt Ceiling (again) and, in more general terms, spending.  Of all the shocking parts of the shutdown, perhaps the most shocking was the lack of depth to any of the underlying problems.  Republicans in broad, general terms oppose government spending, and that's okay.  There is nothing inherently terrible about believing in a government that can operate smaller and more efficiently than it currently is.  Unfortunately we seem to have reached a point where that is their only concern.  A large section of the Republican party (I'm look at you Tea Partiers) seem to currently believe that the only responsibility of Congress is to spend less money, slash expenditures, then slash taxes, any spending is bad spending.  That view is, and I’ll be generous, simplistic.  To that end, obviously they inherently oppose Obamacare (Spending money to help poor people? Egad!) and, less rationally, raising the debt limit.  With those forces combined (and the need to have something resembling a budget for next year) the House Republicans promptly jammed their fingers in their ears, stuck out their tongues and refuse to act like adults, let alone congressmen.  (I don't live in DC, so I'm just assuming about the fingers in the ears part.)

I can understand Republicans opposing Obamacare; it's a massive bill that involves the Government spending money to meddle in otherwise free(ish) markets.  It would be shocking if they didn't oppose it, but it passed and they've failed 46(?) times to repeal it.  That is a truly remarkable level of ineffectiveness, but in researching this, they seem to believe the next time they'll finally hit that football (just like they did after attempts 30, 41, and 45, and those were only the ones I stumbled across trying to find the most recent number.  (That analogy doesn't really work, there's no Lucy pulling away the ball, they're just a delusional Charlie Brown kicking over and over again and hoping someone feels sorry for them and puts a football in front of their foot.)  That's a reasonable, if somewhat sad principle to stand on.

That brings me back to the Debt Ceiling.  First of all, let's just establish that the Debt Ceiling is awful.  It is bad policy.  As with many things that are awful, it started as an attempt to avoid fighting in Congress; specifically, over loans required to run the country.  I'm going to let that sink in...  Before 1917 Congress approved borrowing when it was needed.  In what now appears to have been misguided optimism, Congress approved the Second Liberty Bond Act to establish that the Treasury could just go ahead and borrow whatever was needed up to a specified limit.  And, shockingly, it worked just fine; at least until 1974.  That was when congress established a new budget process through the Budget Act of 1974.  At that point Congress had managed to create a process where they required two separate and unrelated bills to pass a budget.  One to create the budget and spend the money and a separate bill to actually approve borrowing the money they just spent.  From 1979 to 1995, they bypassed this (wisely, in hindsight) with the Gephardt Rule, essentially saying 'if we pass the budget we must, obviously be willing to borrow what is needed to pay for it'.  Congressional Republicans, because apparently they were crazy before the Tea Party, decided that was too easy and split the votes back apart.  So now, just shy of 100 years later we find ourselves with a Congress that can't manage to cut spending, but can, somehow, manage to refuse to pay for their spending after the fact.  This is why the debt ceiling is not the same as a credit limit.  We're not buying things on credit cards; we're essentially buying things on our word.  Buying them with little more than a "no really, I'm totally good for that" and we get away with it because, well, we have been.  Refusing to raise the Debt Ceiling is Congress saying "thanks for that stuff you gave us; we're not going to pay you for it".  If the Republicans had a problem with the spending, they could have addressed it in a budget, but they didn't, so to come back now and claim to be fiscally responsible by refusing to pay what has already been spent is just flat out disingenuous.

So that was the easy part.  Now for the Who did What, When and Where.  (In the following paragraph, you might notice a lot of Republican names and very few Democrats, ponder that if you're trying to figure out who to blame over the fiasco.)  The only word for the lead up to the shutdown that seems appropriate is "plodding".  It wasn't sudden, it wasn't shocking, and it wasn't effective.  The buildup started over the summer with letters of commitment to de-fund Obamacare that were circulated by Senators Lee, Cruz, Rubio, and Paul, and Representative Meadows.  These letters formalized a written opposition to Obamacare, just in case anyone was confused about where they stood after the first 40-odd actual votes on repealing it.  So, come October 1st the Republicans refused to approve any budget that did not rescind funds from Obamacare.  The Democrats apparently found a spine somewhere and decided that this time they were going to stand up and say "no".

A brief aside about defunding versus repealing:  At this point, the Republicans were not trying to repeal the law, just take away the money to pay for it.  Essentially, Obamacare would have still been the law of the land, but no money would have been allocated to make it actually usable (and they're having enough problems even with the money, but more on that tomorrow).

So the Republicans said "you can't have money for Obamacare", the Democrats said "yeah... we can" and... that's basically it for 16 days.  I'm certain the negotiations were more in depth than that, but when you strip away all of the fluff, that's what is left.  Intermittent bills were introduced to fund certain things, primarily to relieve constituent pressure, which were primarily rebuffed by Senate Democrats. And so, 16 days later, they passed the bill that functionally said "we can keep paying for things the same as we are now", the same bill that some (on both sides of the aisle) had called for before the shutdown.

So, the good news, it got resolved without any major harm on a national level.  I have no doubt that those directly affected by the shutdown, the federal employees, were in a bad way through no fault of their own but it could have been much worse.  Unfortunately, there's still bad news.  It will happen again.  And again.  And again.  This isn't the last debt limit crisis, nor is it the last shutdown.  These are the new tactics of the Republican Congressmen and they'll be reelected and reinforced.  They'll be reelected because nearly all incumbents are, to the tune of 91% in the last election.  Americans, as a rule, hate Congress but love their own Congressmen.  They'll be reinforced because, even if it was a spectacularly bad plan, Cruz et al did actually DO something.  Or at least they tried to.  Even in districts where the incumbent loses, the Tea Party is likely to gain seats.  They're more likely to gain from within the Republican Party than from the Democrats, but either way we're going to end up seeing more of this unless some dire consequences finally come to pass.

There is a bright side though.  Most of the problem Republicans want to be President in 2016.  There's always the possibility that they'll take themselves out of Congress to run and tear each other apart in the primaries without leaving any room to recover.  As long as nothing goes wrong before then...

1,820/60,000

The 2nd Amendment

Alright, I realize I'm a little late to the game on this one, most of the discussion is over for the time being, but with all of the talk about gun control since the incident in Colorado (and that will be my only mention of it) I realized with frustration and chagrin that I really didn't know enough to have a proper opinion.  I've set about trying to rectify that fact, with some success.

My starting outlook was mostly apathetic.  I never saw myself as likely to own a gun, and I still don't, but I knew it was a right guaranteed by the Bill of Rights.  My opinion could have been accurately summarized as "Constitution good, machine guns bad."  A thorough and nuanced opinion if ever there was one.  Hopefully I can express something a little better than that now.

As I see this, it's a question with two independent halves:

1. Is gun control effective, and if so, what is the tipping point of effectiveness?
2. Is gun control constitutional?

Starting with the first question, I set about trying to find the studies and statistics that I just knew would prove that it has been effective.  Well... I'm sure data exists, but the best I could find was either out of date (mid 90s) or controversial on its face.  What I could find that was consistent is that violent crimes involving guns are significantly more common in the US than in other western nations such as the UK or Germany.  Some countries with strict gun control laws have substantially lower gun related crime rates than the US.  Opponents to gun control point to other countries, such as Mexico, that have strict gun control laws and rampant gun related crimes.  The obvious counter-point would be to argue that we have more in common with the countries that are apparently successful than the ones that aren't.

Another common argument against the studies is that they prove correlation not causation.  I don't find that argument particularly compelling myself.  I'm not remotely qualified to prove one way or the other even if I had access to all of the data but, that said, it depends on studies consistently ignoring variables that would better explain the data.  That would virtually require willful disregard for the ethics related to data analysis.

So, is gun control effective?  Maybe.  Countries with similar cultural mores have successfully implemented gun control laws without an outbreak of "only the criminals will have guns" violence.  That doesn't, necessarily, mean it would work in the US, but I genuinely believe that it would be worth the attempt.

That brings us to question two, the constitutionality of gun control.  To quote: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."  It's one of the shortest amendments to the US constitution, and yet, fairly contorted in modern English.  The Supreme Court held in 2008 in District of Columbia v. Heller that this right is essentially a right to defend ones' self with firearms and, necessarily, a right to own those firearms.  The dissent argued that they were specifically protecting the right to form a militia.  Contrary to my normally liberal bent on such questions, I find myself swayed more convincingly by the majority opinion on this case.

So, is gun control constitutional?  I have to come down against it.  Despite the awkward wording, there's not a lot of ambiguity in the second amendment.  Reasoning about the militia aside, "the right of the people to keep and bear arms, shall not be infringed" is pretty straightforward.  It leaves me in the difficult position of wanting gun control but believing it to be unconstitutional and I don't think that this should be the end of the discussion.

I would offer a third option.  Personally I think the founders simply had no way of conceiving of modern society.  The second amendment was written in a time when a well armed civilian militia could reasonably defend itself from an attack.  The right to keep and bear arms amounted to the right to form a militia if it ever proved to be necessary.  These weren't separate concepts as they stand today, they were intrinsically linked to each other.  That said, the concept of tanks (let alone an air force) would have been completely foreign to their frame of reference.  Realistically, our modern day armed forces have replaced any need that the founders would have foreseen for a militia.

This leaves me with only one recourse.  I believe that the only way to move forward on gun control is through amending the constitution to better reflect modern society.  I'm not suggesting that we repeal the second amendment, I'm suggesting that it be replaced with a constitutional protection to keep and bear arms with an eye toward the real and practical uses in our society; hunting, sport, and self-defense.  That would be an effective compromise between the legitimate uses for firearms that can and should be constitutionally protected and the public need to be protected from firearms that don't have a legitimate civilian use.